The Board of Education and Assessmentgate: The Undoing of Free Speech in Montclair, New Jersey

Since the agreement between the Montclair Board of Education (MBoE) and Assessmengate was made public, I have been quiet. As a party similarly targeted by an illegal subpoena from MBoE President Robin Kulwin, I have a vested interest in understanding as well as possible the matter of this agreement and what it means. Last night I was informed that additional citizens who are critical of the MBoE and/or its investigation are being targeted. It is no longer acceptable for me to be silent and tacitly participate in this destructive investigation with its wide casting of a net that intimidates, silences and threatens the freedoms and liberty of innocent people.

On December 5, 2013, the Superior Court of New Jersey temporarily stayed and quashed subpoenas authorized by Ms. Robin Kulwin on behalf of the MBoE aimed at discovering the identity of Assessmentgate, an anonymous Internet blogger and commenter that was critical of the MBoE and its investigation into a security breached that allowed school district assessments to be viewed on a Moscow-based website just days before the tests were to be taken by the school district. The American Civil Liberties Union (ACLU) represented Assessmentgate in court (and then later two other anonymous bloggers targeted by the MBoE) on the basis that the subpoenas violated the Constitutional right to free speech and that they additionally emanated from an investigation without legal authority.

Prior to the court ruling the MBoE refused to engage in any way with Assessmentgate through his/her legal representation in the ACLU. Subsequent to the court ruling, on December 9, the MBoE had an additional subpoena served against Assessmentgate, this time to Baristakids and naming three additional anonymous critics of the MBoE and its investigation, myself included. This was in direct contradiction to the ruling of Superior Court Judge Thomas R. Vena. Following the ruling the MBoE finally agreed to enter into discussion with the ACLU on behalf of Assessmentgate, but did not withdraw the illegally served subpoena.

This week the MBoE and Assessmentgate entered into an agreement that requires Assessmentgate to respond to interrogatories under oath without having, at the moment, to reveal his/her identity. As someone also targeted by the MBoE investigation, I believe this agreement is wrong and undermines Montclair’s values, the Constitution, and mostly the trust and confidence neighbors, friends and family otherwise rightly share. I also fail to understand the advantages achieved by anyone agreeing to a “deal” of this sort. Assessmentgate is not benefited, neither is Mr. Tabakin and his investigation, neither is the MBoE and most assuredly the children of Montclair are being taught a horrid lesson in government, civility and law.

Days prior to the agreement being reached, I expressed to Assessmentgate the reasons I had for believing an agreement of this kind would be wrong. These are the reasons summarized as follows:

1.       Each of the interrogatories you (or anyone else entering into a similar agreement) may be required to respond to under oath could be incriminating. Responding to these interrogatories could lead to further prosecution no matter how innocent you are (and I believe you are as innocent as the rest of us).

2.      Receiving these interrogatories is, in my opinion, no different than a police officer pulling a random person off the street and interrogating that person about any unsolved crime or mystery. The MBoE has told a judge that Assessmentgate is the linch pin in its investigation. To say this, they must have some evidence. They have not been able to produce any such evidence against any one of the four anonymous critics they have targeted.

3.      I think we fail ourselves, the town, the public generally and even the MBoE if we compromise our values on what is blatantly wrong, unlawful and unjust. The only point of the exercise of this agreement is for the MBoE to save face. I am not opposed to being generous and looking for solutions, but those solutions need to be within the confines of the law and they need to be appropriately motivated. This agreement is forced by actions outside the law and it is without any just motivation.

The correct thing for the targeted critics to do is to insist that the law is followed, by all parties.

From reading the subpoenas already served, the interrogatories that Assessmentgate will be forced to respond to under threat of perjury by this agreement will likely include questions about the identity of any person he/she may have e-mailed, texted, phoned, or even spoken to (for example, something said in a passing conversation in the line at Dunkin Donuts). Even if someone else had initiated the conversation and said, for example, “You should have a look at the assessments on the public Internet so you can see just how bad they are for your child.” That person, Assessmentgate or anyone else entering into a similar agreement, would be forced to “snitch on” (providing as well the person’s name), even if that person was a seven year old child.

After a more careful reading of the subpoena served on Mr. David Cumming’s, Member of the Board of Education, I was concerned that more innocent people would be caught up in this MBoE investigation whose stated methodology is that of “casting a wide net” aimed, not only at trying to uncover the security breach, but also at “investigating other incidents of conduct contrary to the Board’s best interest.” Having been targeted (and still targeted) myself, I am aware of the anxiety, time and expense this can generate. The MBoE acts as if it has unlimited taxpayer resources to pursue innocent people with an investigation that is not lawful, has not even taken the most obvious steps to uncover where the security breach was, and appears solely targeted against legitimate and helpful criticism.

Prior to any agreement being reached, I again reached out to Assessmentgate stating that I did not believe that a deal with the MBoE would guarantee an end to the legal problems. In addition, and even more concerning for me, is the question of what happens to the people those who enter into such agreement are required to snitch on? For myself, my sense of right and good conscience would not allow me to cooperate in an unlawful activity. I would not cooperate with an investigation where a major stated aim was ‘investigating conduct contrary to the Board’s interest.’ To do so undermines law, undermines government and undermines good citizenry. Beyond all that, snitching on others to people unduly authorized is unconscionable. I know the destruction done to other societies when this happens. I am unwilling to be a party to it. This behavior is destructive to community and society.

Based on a growing concern for the baseless invasiveness of this investigation into people’s privacy, and the real threat to trust and confidence in the community, I concluded the following for myself and informed Assessmentgate of my position:

The proper response to this offer of a deal is to reject it saying clearly why it is not acceptable:

1. That the possible offer would likely change nothing with regard to the attempt to invade the privacy and trespass on the property of innocent citizens with no cause for suspicion of wrongdoing ever having been provided.

2. That the possible offer would continue the MBoE's attempt to curb the free speech of those targeted (and by extension, all the townspeople).

3. That the subpoenas upon which this possible offer of a deal is based was issue in the framework of an illegal investigation and that the subpoenas itself exceeds even the powers claimed by that illegal investigation.

4. That the subpoena served to Baristakids upon which this possible offer of a deal is based was served in direct contradiction to a Superior Court Judge's order and to date the MBoE has refused to recall the subpoena continuing its act of defiance toward the Court.

5. Compliance with this subpoena or the possible offer of a "deal" based on this subpoena would make the respondents complicit in an unlawful investigation and so too threaten the rights and liberty of themselves and other innocent parties about whom they have been asked to provide information (gossip).

6. The targeted parties note that the Montclair Township Council passed a resolution stating "WHEREAS, the Township Council finds that it is in the best interest of the people of Montclair for the Township to refuse to cooperate with or assist the Investigation in any way." Compliance with this subpoena, the possible offer of a "deal," or the MBoE investigation "in any way" would be in contradiction with "the best interest of the people of Montclair" and disrespectful to the expressed position of the township's leadership.

After being informed that the MBoE and Assessmentgate entered into an agreement based on Assessmentgate responding to interrogatories, I felt disappointed that I was so weak as not to be able to convince others of the wrongness of the MBoE investigation. I also felt some shame in not having spoken out more forcefully and being too careful for my own security and my family’s.

However, as we see the MBoE continuing to go forth relentlessly after innocent citizens whose only fault was having exercised their ability and their right to speak, in the interest of their children and their family, it is no longer acceptable for me to persist in silence.

I wish to state that this is my position and I do not expect others necessarily to hold the same or even a similar position. I have admired Assessmentgate openly for her/his courage and intelligence. I remind the reader that the precise concern raised by the Assessmentgate Patch blog on November 13, 2013, was raised by Mr. David Deutsch, Member of the MBoE, this past Monday night at the MBoE Meeting. I believe that Assessmentgate fought the good fight and s/he is entitled to lay down her/his arms at any point. No matter what the courts would have returned in a final decision, s/he would have been on the right side of American freedoms and rights in my eyes.

This agreement though also affects the lives of others in a severe manner. In addition, the agreement sets a poor precedent that threatens the US Bill of Rights, the New Jersey State Constitution, and the specific rights to free speech and a free press. Further, as already clearly expressed by the Montclair Town Council, this agreement falls within an investigation that is destructive to the school district and the community as a whole.

The agreement is wrong; it undermines government, undermines the Constitution, and diminishes all of us morally.